UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

RICHARD L. QUINN, JR.,

Plaintiff,

 Civil Action 2:11-cv-268

v. Judge James L. Graham 

 Magistrate Judge Elizabeth P. Deavers

ROBIN KNAB, WARDEN, et al., 

Defendants.

REPORT AND RECOMMENDATION

Plaintiff, Richard L. Quinn, Jr., an inmate in the custody of the Chillicothe Correctional

Institution (“CCI”) who is proceeding without the assistance of counsel, filed this civil rights

action pursuant to 42 U.S.C. § 1983 against Defendants, alleging that Defendants impeded his

ability to exercise his religion in violation of the Religious Land Use and Institutionalized

Persons Act (“RLUIPA”) and the First Amendment. This matter is before the United States

Magistrate Judge for a Report and Recommendation on Defendants’ First Motion for Summary

Judgment (ECF No. 43), Plaintiff’s Memorandum in Opposition (ECF No. 44), and Defendants’

Reply (ECF No. 45). Through their Motion, Defendants seek dismissal of Plaintiff’s remaining

claims on the grounds that he failed to properly exhaust his administrative remedies prior to

bringing suit. For the reasons stated below, it is RECOMMENDED that Defendants’ Motion

be DENIED. 

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I. BACKGROUND

On December 20, 2010, Plaintiff submitted a Request for Religious Accommodation

(Form DRC4326) to the Chaplain’s Office at Chillicothe Correctional Institution (“CCI”). 

(Cleveland Decl. at Ex. 2, ECF No. 43-1; Compl. 14, ECF No. 5.) In his Request for Religious

Accommodation, Plaintiff identifies his religion as “Christian Identity.” (Id.) He explains in an

attachment to his request that he identifies himself as “Christian ‘Israel’ Identity” and that his

practice of this religion includes “invok[ing] upon [himself] to take a Vow of the Nazarite for

any period seeing fit as the Holy Spirit allows.” (Compl. 14–18, ECF No. 5.) He goes on to

explain, in detail, what the Vow of a Nazarite entails, referencing Bible verses that he asserts

support each of the Vow’s components. (Id.) For example, he indicates that he “must,” among

other things: not cut his hair with a razor; not eat certain types of food; not work on the Sabbath;

and not touch anything dead. (Id.) Plaintiff’s requested accommodation includes the following

dietary restrictions: no “wine or vinegar of the grape or vine”; no “unclean foods, strong drink,

or things of the vine”: no consumption of “[a]nything that chews cud but divide not the hoof”; no

“[s]wine - Jellotin-based products, no lard-butter product”; “all medication [must be

administered in] tablet form or Kosher cups”; no consumption of animals with scales or fins; and

no “animal-based oil, fungus, spores, and the like.” (Id. at 15–16.) He also requests to

“celebrate the festival of Yahvah,” which he indicates begins “on the fifteenth day of the seventh

month” and includes “sacred rest” on the first and eighth day of the celebration. (Id. at 16.)

On January 12, 2011, approximately three weeks after Plaintiff submitted his request, the

chaplain recorded his recommendation on Form DRC4327. (Id. at 8.) Form DRC4327, titled

“Response to Request for Religious Accommodation,” requires a recommendation from the

prison’s chaplain and review committee as well as a final decision or referral from the warden. 

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In recommending the denial of Plaintiff’s request, the chaplain stated as follows:

Chaplain does not recommend request for Offender Quinn hair as Nazarite Vow.

Offender Quinn list[s] his Religion as Christian Identity. “Christian Identity is a

diverse and loosely organized movement based on an elaborate belief system that

promotes white suprem acy and anti-Sem itism.” [Cited from article “Christian

Identity Movement History, Beliefs and Practices] taken from Internet Christian

Identity see attached article[.]

Secondly, a Nazarite Vow was an Old Testament vow of separation for the Ancient

Jews and not a Religion. Policy states “The chaplain m ay consider whether the

request is consistent with the established traditions of the faith group, although that

factor need not be controlling. The chaplain m ay also consider any operational

difficulties presented by the request and any obvious and reasonable alternatives.” 

 

(Id.) There is no evidence that the chaplain complied with the Ohio Department of

Rehabilitation and Correction’s (“ODRC”) Policy 72-REG-02-(G)(3), which requires the

chaplain to meet with the inmate to discuss his request prior to issuing a recommendation. 

On January 25, 2011, CCI’s Religious Services Committee noted on Form DRC4327 that

it concurred with the chaplain. The Committee offered no separate analysis. That same day,

CCI’s Warden noted on the form that Plaintiff’s request was “disapproved.” ODRC’s Office of

Religious Services Administrator received copies of Plaintiff’s Request for Religious

Accommodation and CCI’s Response as reflected on Form DRC4327 on January 26, 2011. (See

Form DRC4327, ECF No. 43-1.) The record contains no evidence indicating when Plaintiff

received notice of the CCI’s Warden’s disapproval of his request. Plaintiff did, however, attach

to his Complaint correspondence from CCI’s Religious Services Committee, which reflected that

the Committee concurred with the chaplain’s recommendation. (Compl. 7, ECF No. 5.) This

correspondence is dated February 16, 2011, and advises Plaintiff as follows: “Your request has

been forwarded to Central Office for the final approval/disapproval and notification of that

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decision will be sent to you from that office. This documentation is to be used until which time

as the final approval/disapproval is made.” (Id.) 

On February 24, 2011, it appears that Plaintiff attempted to appeal or object to the denial

of his request for a religious accommodation. He submitted his appeal/objection to ODRC’s

Office of Religious Services Administrator on a form titled “Informal Complaint Resolution.”

(Feb. 24, 2011 Appeal/Objection, ECF No. 43-1.) In his attempted appeal/objection, Plaintiff

complains that ODRC did not follow Policy Number 72-REG-02 and explains that he was not

able to meet with the chaplain. He references attachments, but Defendants did not include any

attachments with the copy they submitted to this Court in connection with their Motion. On

March 4, 2011, a staff member from ODRC’s Office of Religious Services Administrator

responded to Plaintiff. Her response, however, is illegible due the quality of the copy

Defendants filed with the Court. 

Plaintiff filed the instant action on March 25, 2011. 

II.

Under Federal Rule of Civil Procedure 56, “[t]he court shall grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “The moving party has the initial

burden of proving that no genuine issue of material fact exists, and the court must draw all

reasonable inferences in the light most favorable to the nonmoving party.” Stansberry v. Air

Wisc. Airlines Corp., 651 F.3d 482, 486 (6th Cir. 2011) (internal quotations omitted); cf. Fed. R.

Civ. P. 56(e)(2) (providing that if a party “fails to properly address another party’s assertion of

fact” then the court may “consider the fact undisputed for purposes of the motion”).

“Once the moving party meets its initial burden, the nonmovant must ‘designate specific

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facts showing that there is a genuine issue for trial.’” Kimble v. Wasylyshyn, No. 10–3110, 2011

WL 4469612, at *3 (6th Cir. Sept. 28, 2011) (quoting Celotex Corp. v. Catrett, 477 U.S. 317,

324 (1986)); see also Fed. R. Civ. P. 56(c) (requiring a party maintaining that a fact is genuinely

disputed to “cit[e] to particular parts of materials in the record”). “The nonmovant must,

however, do more than simply show that there is some metaphysical doubt as to the material

facts, . . . there must be evidence upon which a reasonable jury could return a verdict in favor of

the non-moving party to create a genuine dispute.” Lee v. Metro. Gov’t of Nashville & Davidson

Cnty., 432 F. App’x 435, 441 (6th Cir. 2011) (internal quotation marks and citations omitted). 

“When a motion for summary judgment is properly made and supported and the nonmoving

party fails to respond with a showing sufficient to establish an essential element of its case,

summary judgment is appropriate.” Stansberry, 651 F.3d at 486 (citing Celotex, 477 U.S. at

322–23).

III.

Defendants ask the Court to dismiss Plaintiff’s remaining RLUIPA and § 1983 First

Amendment free exercise claims on the grounds that he failed to properly satisfy the exhaustion

requirements set forth in the Prison Litigation Reform Act of 1996 (“PLRA”), 42 U.S.C. §

1997e(a). 

“A prisoner’s failure to exhaust his intra-prison administrative remedies prior to filing

suit ‘is an affirmative defense under the PLRA . . . .’” Surles v. Andison, 678 F.3d 452, 455 (6th

Cir. 2012) (quoting Jones v. Bock, 549 U.S. 199, 216 (2007)). Defendants bear the burden of

proof on the affirmative defense of exhaustion. Napier v. Laurel County, Ky., 636 F.3d 218, 225

(6th Cir. 2011) (citations omitted) (“[F]ailure to exhaust administrative remedies under the

PLRA is an affirmative defense that must be established by the defendants.”). “Summary

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judgment is appropriate only if defendants establish the absence of a genuine dispute as to any

material fact regarding non-exhaustion.” Surles, 678 F.3d at 455. “When a prisoner’s complaint

contains a combination of exhausted and unexhausted claims, courts are to dismiss the

unexhausted claims but retain and address the exhausted claims.” Reynolds-Bey v. Harris, 428

F. App’x 493, 500 (6th Cir. 2011) (citing Jones, 549 U.S. at 220–24).

Under 42 U.S.C. § 1997e(a), as amended by the PLRA, “a prisoner confined in any jail,

prison, or other correctional facility” may not bring an action challenging “prison conditions”

under 42 U.S.C. § 1983 “or any other Federal law . . . until such administrative remedies as are

available are exhausted.” 42 U.S.C. § 1997e(a); Jones, 549 U.S. at 211 (“There is no question

that exhaustion is mandatory under the PLRA and that unexhausted claims cannot be brought in

court.” (citation omitted)). This mandatory exhaustion requirement applies to all lawsuits

relating to prison conditions, regardless of the nature of the wrong or the relief sought. Porter v.

Nussle, 534 U.S. 516, 524 (2002). “Exhaustion” under the PLRA means “proper exhaustion.” 

Woodford v. Ngo, 548 U.S. 81, 93 (2006). To properly exhaust, prisoners must “tak[e]

advantage of each step the prison holds out for resolving the claim internally and . . . follow the

‘critical procedural rules’ of the prison’s grievance process to permit prison officials to review

and, if necessary, correct the grievance ‘on the merits’ in the first instance.” Reed-Bey v.

Pramstaller, 603 F.3d 322, 324 (6th Cir. 2010); Jones, 549 U.S. at 217–18 (noting that proper

exhaustion requires “[c]ompliance with prison grievance procedures”). 

In Ohio, the general inmate grievance procedure is set forth in Ohio Administrative Code

§ 5120-9-31. Section 5120-9-31(B), however, provides that “[t]he inmate grievance procedure

will not serve as an additional or substitute appeal process for . . . those issues or actions which

already include an appeal mechanism beyond the institutional level or where a final decision has

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been rendered by central office staff.” Ohio Admin. Code § 5120-9-31(B). ODRC has

promulgated specific procedures for handling inmates’ requests for religious affiliation changes

and accommodations. These specific procedures are embodied in ODRC Policy Number 72-

REG-02. This Policy includes an appeal mechanism beyond the institutional level for certain

types of religious-accommodation requests and instructs that the central office will render the

final decision with regards to other types of requests, regardless of whether an inmate appeals. 

Consequently, pursuant to Ohio Administrative Code § 5120-9-31(B), ODRC Policy Number

72-REG-02 is the exclusive administrative procedure for inmates seeking religious

accommodations. See Ohio Admin. Code § 5120-9-31(B). 

 ODRC Policy Number 72-REG-02(G) provides that an inmate seeking to request a

religious accommodation shall fill out a Request for Religious Accommodation form (Form

DRC4326) and submit the completed form to the chaplain. ODRC Policy No. 72-REG-02(G)(1-

3). The chaplain is then required to meet with the inmate, providing the inmate with the

opportunity to explain and discuss his request. ODRC Policy No. 72-REG-02(G)(3). Within

fourteen days, the chaplain must record his recommendation, setting forth the bases for his

recommendation, and refer the inmate’s request to the institution’s Religious Accommodation

Review Committee. ODRC Policy No. 72-REG-02(G)(4-5). Next, the Committee must evaluate

the inmate’s request, together with any supporting materials and the chaplain’s recommendation;

record its recommendation along with a brief explanation of its reasons on the form titled

“Response to Request for Religious Accommodation” (Form DRC4327); and forward its

recommended response to the managing officer/designee. ODRC Policy No. 72-REG-02(G)(6-

8). The managing officer/designee must then review the Committee’s recommendation and

record his decision on the Response to Request for Religious Accommodation form (Form

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DRC4327), forwarding the decision to the inmate and chaplain. ODRC Policy No. 72-REG02(G)(8-10). 

Generally, the decision of the managing officer/designee is final. An inmate desiring to

appeal a managing officer/designee’s final decision must, within fifteen days, submit a form

titled “Offender’s Appeal of Decision Regarding Religious Accommodation” (Form DRC4442)

to the Religious Services Administrator. ODRC Policy No. 72-REG-02(G)(10-11). 

If, however, the request involves certain enumerated matters, the Religious Services

Administrator, not the managing officer/designee, shall make the final decision. ODRC Policy

No. 72-REG-02(G)(10). In such instances, the managing officicer/designee is required to make

a recommendation and forward the Response to Request for Religious Accommodation (Form

DRC4327) and all accompanying materials to the Religious Services Administrator for a final

decision. (Id.) The inmate is permitted to object to such a recommendation. ODRC Policy No.

72-REG-02(G)(11). ODRC Policy Number 72-REG-02(H) sets forth the “matters [that] shall be

referred to the Religious Services Administrator” and includes, among other matters, requests

involving specialized diets and for recognition of new religious holidays. ODRC Policy No. 72-

REG-02(H)(1-3). In pertinent part, this Section provides as follows: 

The following matters shall be referred to the Religious Services Administrator: 

1. New dietary requests: Requests that would require the creation of a special

diet, a religious “feast” menu, or that would require the purchase of special

foods (e.g. kosher, halal, etc.) not currently offered, or which would expand

access to such diets to different or additional religious groups m ust be

referred to the Religious Services Administrator for final decision. Decisions

to accommodate an indi vidual inmate with existing dietary options (e.g.

meatless diet, etc.) can be made at the institution.

 

* * *

3. The recognition of any religious holiday not previously observed or

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recognized. 

(Id.) 

The Undersigned concludes that Defendants have not satisfied their initial burden to

show that Plaintiff failed to fully exhaust his administrative remedies. Defendants argue that

Plaintiff’s efforts were insufficient because he “failed to submit the proper form and proper

documentation to effectuate an appeal of the January 25, 2011 denial of his December 20, 2012

request.” (Defs.’ Mot. 6, ECF No. 43.) Defendants maintain that Plaintiff’s March 2, 2011

attempted appeal/objection was deficient because it was untimely and submitted on the wrong

form. 

The flaw in Defendants’ position is that under ODRC Policy Number 72-REG-02, CCI’s

Warden did not have authority to issue a final, appealable decision. This is because Plaintiff’s

religious accommodation, if granted, would require the creation of a special diet and the

recognition of a religious holiday. Indeed, his issuance of a final a decision disapproving

Plaintiff’s request on January 25, 2011, violated ODRC Policy Number 72-REG-02(H)(10). 

(See Form DRC4327, ECF No. 43-1 (marking the box labeled “Disapproved” instead of the box

labeled “Refer to Reg. Religious Services Admin.”).) CCI’s Warden should have forwarded his

response (Form DRC4327) and all accompanying materials to the Religious Services

Administrator for a final decision. Upon receiving the CCI’s Warden’s decision (as reflected on

Form DRC4327 and accompanying materials) on January 26, 2011, the Religious Services

Administrator took no action to remedy the CCI’s Warden’s violation of policy. Nor did the

Religious Services Administrator take action upon receipt of Plaintiff’s February 24, 2011

attempted appeal/objection wherein he specifically complained that ODRC Policy Number 72-

REG-02 was not followed. (See Feb. 24, 2011 Appeal/Objection, ECF No. 43-1.) 

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Plaintiff, in properly filling out the requisite Request for Religious Accommodation form

(Form DRC4326) and submitting it to the chaplain, satisfied his obligations under ODRC Policy

Number 72-REG-02. Plaintiff was entitled to interpret the Religious Services Administrator’s

failure to remedy the policy deviations and issue a final decision to be a denial of his request. 

See Risher v. Lappin, 639 F.3d 236, 240–41 (6th Cir. 2011) (holding that the inmate “was

entitled to consider the absence of a response to be a denial” of his grievance, explaining that the

inmate “was not required to make additional efforts beyond the scope of the Bureau’s

regulations” where the prison staff had failed to follow its own procedures); Boyd v. Corr. Corp.

of Am., 380 F.3d 989, 996 (6th Cir. 2004) (concluding that “administrative remedies are

exhausted when prison officials fail to timely respond to a properly filed grievance); Hughes v.

Lavender, No. 2:10-cv-674, 2011 WL 1337155, at *10 (S.D. Ohio Apr. 6, 2011) (denying the

defendants’ motion for summary judgment on the grounds of exhaustion where the plaintiff

submitted evidence indicating that the defendants had failed to timely respond to his

complaints); Nassar v. Warden, Butler Cnty. Jail, No. 1:10-cv-031, 2011 WL 7268004, at *5

(S.D. Ohio Sept. 1, 2011) (denying the defendants’ motion for summary judgment on the

grounds of exhaustion where the defendants failed to offer evidence that the jail officials

“properly responded to [the] plaintiff’s grievances in accordance with their own policy”). As the

Court of Appeals noted in Risher: “When pro se inmates are required to follow agency

procedures to the letter in order to preserve their federal claims, we see no reason to exempt the

agency from similar compliance with its own rules.” 639 F.3d at 241. 

In sum, Defendants have failed to demonstrate that Plaintiff’s efforts were insufficient to

exhaust his administrative remedies with regards to his request for a religious accommodation. 

Because Defendants have failed to satisfy their burden, the Undersigned recommends that their

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Motion be denied. 

IV. 

For the reasons set forth above, it is RECOMMENDED that Defendants’ First Motion

for Summary Judgment be DENIED. (ECF No. 43.) 

PROCEDURE ON OBJECTIONS

If any party seeks review by the District Judge of this Report and Recommendation, that

party may, within fourteen (14) days, file and serve on all parties objections to the Report and

Recommendation, specifically designating this Report and Recommendation, and the part in

question, as well as the basis for objection. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b).

Response to objections must be filed within fourteen (14) days after being served with a copy.

Fed. R. Civ. P. 72(b).

The parties are specifically advised that the failure to object to the Report and

Recommendation will result in a waiver of the right to de novo review by the District Judge and

waiver of the right to appeal the judgment of the District Court. See, e.g., Pfahler v. Nat’l Latex

Prod. Co., 517 F.3d 816, 829 (6th Cir. 2007) (holding that “failure to object to the magistrate

judge’s recommendations constituted a waiver of [the defendant’s] ability to appeal the district

court’s ruling”); United States v. Sullivan, 431 F.3d 976, 984 (6th Cir. 2005) (holding that

defendant waived appeal of district court’s denial of pretrial motion by failing to timely object to

magistrate judge’s report and recommendation). Even when timely objections are filed, appellate

review of issues not raised in those objections is waived. Robert v. Tesson, 507 F.3d 981, 994

(6th Cir. 2007) (“[A] general objection to a magistrate judge’s report, which fails to specify the

issues of contention, does not suffice to preserve an issue for appeal . . . .”) (citation omitted)).

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Date: January 18, 2013 /s/ Elizabeth A. Preston Deavers 

 Elizabeth A. Preston Deavers

 United States Magistrate Judge

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